Pursuant to the timely petition for review filed by the employer and Employer's
Insurance of Wausau (collectively, the respondents) in the above-captioned matter, the
commission has considered the petition and all relief requested. The commission has
reviewed the applicable records and evidence and finds that the administrative law judge's
findings and order are supported thereby. The commission therefore adopts the findings and
order of the administrative law judge as its own.

NOW, THEREFORE, the Labor and Industry Review Commission does

ORDER

That the findings and order of the administrative law judge are hereby affirmed.

This case turns on whether to accept the 1976 pre-employment audiogram as baseline for
determining pre- employment hearing loss. The 1976 audiogram was performed 64 hours after
the applicant had last been exposed to noise, and the applicant argues his hearing had not
yet had the chance to "bounce back" from the occupational exposure when the
audiogram was performed. The administrative law judge accepted this argument, based on the
evidence at the hearing, and concluded that the audiogram should not be accepted because
it has not been established to be reliable. The commission agrees.

At the remand hearing, the respondent introduced a letter from Gary T. Miller, M.D., to
the effect that OSHA only requires 14 hours of non-noise exposure to obtain an accurate
audiogram and that:

"Certainly, any audiogram obtained 48 hours or more after removal from the
long-term industrial noise environment would not reflect any temporary threshold shift,
and should accurately reflect the true status of the individual's hearing. It should be
noted that 48 hours is more than 3 times the 14 hours which OSHA has determined to be
adequate for obtaining an accurate audiogram. I have been unable to find any published
requirement for either baseline or follow-up audiometric testing which exceeds the 14-hour
OSHA baseline requirement."

Exhibit 3.

However, the evidence in this case established that the pre-employment audiogram at
issue (which was performed only 64 hours after exposure to noise) was unreliable. The 1976
audiogram shows a significantly greater degree of hearing loss in the left ear than was
established in the 1992 test, indicating that not all of the pre-existing loss measured in
the 1976 audiogram was permanent. Only permanent hearing loss is compensable as
occupational deafness. Section 102.55 (1), Stats. Likewise, an employer may only claim
pre-existing, permanent deafness as the basis for a reduction under sec. 102.55 (8),
Stats. Further, permanent sensorineural hearing loss caused by occupational exposure to
noise is not considered to be reversible, 3A Attorneys' Textbook of Medicine, par. 84A.102
(1993), so the applicant's hearing would not have improved between 1976 and 1992. In
short, the reliability of the 1976 audiogram is severely compromised by the fact it either
was inaccurate or showed some degree of hearing loss to be permanent when in fact it was
not.

The administrative law judge also found that the record does not show the 1976
audiogram was performed by a qualified person and that the 1976 audiogram was unreliable
because it was taken nine months before the applicant quit US Plywood. However, the copy
of the audiogram indicates the test was given by a "technician" at the Algoma
Clinic, and is signed by a medical doctor. Further, sensorineural loss is not something
that gets better, so an accurate audiogram should, if anything, have understated the
applicant's loss when he left US Plywood nine months later. Nonetheless, because the
commission cannot conclude that the 1976 audiogram was accurate, the audiogram may not be
used as a basis for reduction of liability by the employer.

It might seem unfair to place the liability for the applicant's hearing loss on the
employer. However, the general rule in occupational disease cases is the entire amount of
liability for an occupational disease is imposed on the last employer whose employment
contributed to the disease, even if other employment contributed to the progression of the
industrial disease, because "the law of averages will equalize burdens imposed by
this act among the employers and the compensation insurers of this state." Employers
Mutual Life Ins. Co. v. McCormick, 195 Wis. 410, 414-16 (1928); Travelers
Ins. Co. v. ILHR Department, 85 Wis. 2d 776, 784 (Ct. App., 1978). This
general rule is recognized in the very opening sentence of sec. 102.555 (8), Stats., which
states that "an employer is liable for the entire occupational deafness to which his
or her employment has contributed," unless he or she can establish previous deafness
by a hearing test or other competent evidence. Again, the employer in this case has failed
to provide a reliable test or other evidence showing previous deafness.